Independent Medical Exams – How Independent Are They?
When filing a lawsuit, the Rules of Court permit the defendant, through his or her insurance company, to require a physical exam for the purpose of determining the plaintiff's nature and extent of injuries including causal relationship, reasonableness of treatment, and whether the cost of treatment was reasonable. Other opinions sought through the examination include whether the treatment received by the plaintiff was beyond reasonable standards and whether the plaintiff’s time lost from employment was reasonable.
Independent medical exams are not truly independent. Insurance companies know which doctors are conservative or liberal as well as how meticulous those physicians are in performing the alleged independent medical exam. Insurance companies will have the plaintiff examined by physicians who will provide reports favorable to the insurance company’s position and who will also testify in court against the plaintiff. From previous experience they know who will be loyal to them. Therefore these physicians used by insurance companies are hired guns. Often these physicians spend a substantial part of their practice time performing alleged independent examinations on referrals from insurance companies. In addition, many of these physicians receive referrals from these insurance companies for treatment of the insurance company’s policy holders. Under Maryland law, all vehicles licensed within the state of Maryland must have personal injury protection coverage. Often insurance companies are asked by their insureds who they should see for medical treatment and, in some instances, insurance companies have a list of physicians whom they guarantee to the insured that they (the insurance company) will pay 100% of the recommended physician’s charges up to 100% of the existing amount of the insurance benefit. Those benefits under personal injury protection coverage can be at the lowest, $2500, and can be as high as $10,000. Additional coverages might include medical insurance over and above the personal injury protection benefit. Again, the physician that the insurance company has identified for an independent medical examination will be supported by the court and the insurance company knows that the doctor’s examination will support their defense position.
Preparation for an independent medical exam requires time and effort. In our office, we begin preparing for the independent medical exam at the beginning of the case! We seek to meet with our client in person or on the telephone before each examination by his/her treating physician, and this is before suit has been filed. As part of pre-examination meetings, we go over the client’s complaints and utilize a checklist of physical complaints for each of the injured areas on the client’s body. At each subsequent pre-examination meeting, we also go over with the client the treating physician’s reports so that the client understands what has been stated in those reports. Many clients believe that if they have told their physician once of their current physical complaints, it is not necessary to repeat the complaints. We ask clients to, at each visit to the treating physician, to report all of their current physical complaints and to do so with specific details. If the condition has resolved, we ask our clients to communicate that to their physician as well. When clients are systematically prepared through review of their medical and diagnostic records, preparing of the checklist, and pre-examination meetings, then as a direct consequence, clients are already prepared to see the physician designated by the insurance company for an alleged independent medical examination.
We ask clients to be aware that the physician designated by the insurance company may have them fill out a checklist identifying all of their physical complaints and the nature and extent or the severity of each complaint. We prepare clients for that aspect of the alleged independent examination. We ask our clients to bring our checklist of client complaints with them and to prepare for the examination by reading their medical reports before meeting with us. Clients need to be aware that the insurance company’s physician will be able to testify in court about what occurred not only in the exam but also in all previous medical reports and what I would call " statements against interest." Statements against interest could be client statements made at the scene of the accident when the police who investigated the accident wrote in his or her report that the individual stated that they were not injured. Other types of statements against interest could be what the individual told family members or coworkers and what they said about the accident in the social media. In our retainer agreement, which is a contingent agreement (meaning that we are paid on the basis of a successful outcome and a percentage of that outcome), we have an explanation of attorney-client privilege and we advise clients that the attorney-client privilege is waived or broken by utilizing their employer's e-mail or telephone. This occurs when the employee has agreed that the use of company e-mail services results in the ownership of the e-mail by the employer and when telephone conversations by the employee are recorded when the employee has agreed that the ownership of the recording belongs to the employer.
Preparation is the key for achieving the best possible result from an alleged independent medical exam. As I stated earlier, through frequent contact between the client and our office before each examination, the client is in a better position to communicate his or her physical complaints.
Fred Antenberg has over 30 years’ experience in working with clients in Howard County and surrounding counties in Maryland who suffered injuries in motor vehicle accidents. He and his staff seek to prepare clients from the initial contact through follow-up appointments so that when suit is filed, the client is already substantially prepared to do what is in the client's best interest --communicating his or her complaints.
Call Fred at 410-730-4404 for free initial consultation.